Chavez v. Home Depot USA, Inc.

IN THE UNITED STATES DISTRICT COURT September 18, 2023

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

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RUTHANN CHAVEZ, §

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Plaintiff, §

v. § CIVIL ACTION NO. H-22-1700

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HOME DEPOT USA, INC., §

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Defendant. §

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MEMORANDUM AND OPINION

Ruthann Chavez sued Home Depot after she tripped and fell, sustaining what are alleged

to be severe injuries. (Docket Entry No. 1). After disclosures and discovery, Home Depot has

moved to exclude the expert report of Dr. Cochran, one of Chavez’s treating physicians, as

unreliable and inadmissible under Rule 702 of the Federal Rules of Evidence. (Docket Entry No.

65). Home Depot also moves to exclude the testimony of Chavez’s non-retained expert physicians

due to insufficient disclosures, and to exclude a submitted Life Care Plan as failing to show future

expenses with sufficient probability. (Docket Entry No. 66). Chavez responded to both, and Home

Depot replied. (Docket Entry No. 70–73).

Based on the parties’ briefing, the underlying reports and disclosures, the record, and the

relevant law, the court grants in part the motion to exclude the testimony of Dr. Cochran and denies

in part and grants in part the motion to exclude the testimony of other non-retained expert

physicians and the Life Care Plan. The reasons are set out below.

I. The Standard for Expert Testimony

Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify thereto in the form of an

opinion or otherwise, if

(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the

case.

“Rule 702 charges trial courts to act as ‘gate-keepers,’ making a ‘preliminary assessment of

whether the reasoning or methodology underlying the testimony is scientifically valid and of

whether that reasoning or methodology properly can be applied to the facts in issue.’” Pipitone v.

Biomatrix, Inc., 288 F.3d 239, 243–44 (5th Cir. 2002) (quoting Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 592–93 (1993)). Expert testimony must be both “relevant and reliable” to be

admissible. United States v. Tucker, 345 F.3d 320, 327 (5th Cir. 2003) (quoting Pipitone, 288 F.3d

at 243–44); Daubert, 509 U.S. at 589 (“[U]nder the Rules the trial judge must ensure that any and

all scientific testimony or evidence admitted is not only relevant, but reliable.”).

In making its reliability determination, the court considers the soundness of the general

principles or reasoning on which the expert relies and of the methodology that applies those

principles to the facts of the case. Daubert, 509 U.S. at 594–95; Watkins v. Telsmith, Inc., 121 F.3d

984, 989 (5th Cir. 1997). Several factors guide a district court’s inquiry into the reliability of expert

testimony, including: “(1) whether the technique in question has been tested; (2) whether the

technique has been subject to peer review and publication; (3) the error rate of the technique; (4)

the existence and maintenance of standards controlling the technique's operation; and (5) whether

the technique has been generally accepted[.]” United States v. Perry, 35 F.4th 293, 329 (5th Cir.

2022) (citing Daubert v. Merrill Dow Pharms., 509 U.S. 579, 593–94 (1993)). Not all factors apply

in every case.

Admissibility of expert testimony is an issue for the trial judge to resolve under Federal

Rule of Evidence 104(a). Daubert, 509 U.S. at 592–93. The party offering the testimony must

prove by a preponderance of the evidence that the expert’s opinion is relevant and reliable.

Bourjaily v. United States, 483 U.S. 171, 175–76 (1987); Mathis v. Exxon Corp., 302 F.3d 448,

460 (5th Cir. 2002). “A trial court’s ruling regarding admissibility of expert testimony is protected

by an ambit of discretion and must be sustained unless manifestly erroneous.” Satcher v. Honda

Motor Co., 52 F.3d 1311, 1317 (5th Cir. 1995) (citation omitted).

II. The Rule 26(a)(2)(C) Standard

Rule 26(a)(2)(C) governs the disclosures litigants must make before presenting a non-

retained expert. Under this rule, a party intending to present a non-retained expert must disclose

“the subject matter on which the witness is expected to present evidence” and “a summary of the

facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a). Designations

under Rule 26(a)(2)(C) do not require “undue detail.” Moore v. City of Houston, No. 17-CV-2505,

2019 WL 8886239, at *3 (S.D. Tex. Nov. 12, 2019); see also Everett Fin., Inc. v. Primary

Residential Mortg., Inc., 2017 WL 90366, at *1–2 (N.D. Tex. Jan. 10, 2017) (summarizing cases);

Fed. R. Civ. P. 26, Adv. Comm. Note (2010). That said, “some specificity is required.” Tolan v.

Cotton, No. 09-CV-1324, 2015 WL 5332171, at *5 (S.D. Tex. Sept. 14, 2015).

Under Rule 26(a)(2)(C), counsel presenting a non-retained expert, such as a treating

physician, is not required to provide a written report. Fed. R. Civ. P. 26(a)(2)(C). All that is

required is a summary of the subject matter on which the expert will testify, the expert’s opinions,

and the underlying factual basis for those opinions. Kemp v. City of Houston, No. 10-CV-3111,

2013 WL 12320720, at *4 (S.D. Tex. July 24, 2013). The Advisory Committee Notes for the 2010

amendments to Rule 26(a)(2)(C) explain the different treatment for the designation of non-retained

experts:

Rule 26(a)(2)(C) is added to mandate summary disclosures of the opinions to be

offered by expert witnesses who are not required to provide reports under Rule

26(a)(2)(B) and of the facts supporting those opinions. This disclosure is

considerably less extensive than the report required by Rule 26(a)(2)(B). Courts

must take care against requiring undue detail, keeping in mind that these witnesses

have not been specially retained and may not be as responsive to counsel as those

who have. . . . Frequent examples include physicians or other health care

professionals and employees of a party who do not regularly provide expert

testimony.

Fed. R. Civ. P. 26, Adv. Comm. Note (2010).

Rule 26(a)(2)(C) requires the “summary of the facts” to contain “a brief account of facts—

only those on which the expert actually relied in forming his or her opinions—that states the main

points derived from a larger body of information.” Tolan, 2015 WL 5332171, at *6.

III. Analysis

A. Doctor Cochran’s Testimony

Dr. Cochran is one of Chavez’s treating physicians. Chavez has offered his expert opinion

on injury causation and future treatment and costs. This court previously permitted the untimely

designation of Dr. Cochran as an expert. (Docket Entry No. 44). Home Depot now requests

exclusion of Dr. Cochran’s testimony on the basis that his opinions are unreliable and highly

prejudicial under FRE 702. (Docket Entry No. 65).

Although Chavez designated Dr. Cochran as a non-retained expert, Home Depot argues

that Dr. Cochran is in fact a retained expert because he is testifying as to causation based on

information provided by Chavez. (Docket Entry No. 73 at 3–4). In support, Home Depot relies on

Kallassy v. Cirrus Design Corp., No. 3:04-CV-0727N, 2006 WL 1489248 (N.D. Tex. May 30,

2006), aff’d, 265 F. App’x 165 (5th Cir. 2008), in which a treating physician was held to be a

retained expert. In that case, the doctor relied on extra information provided by the plaintiff. The

court relied on another case in which counsel had “arranged for observations and data necessary”

for the expert’s opinion, making it an opinion of a retained expert rather than a treating doctor.

Id.; Kiser v. Gen. Motors Corp., 2000 WL 1006239, at *2 (E.D. La. July 19, 2000).

Unlike the doctors in Kallassy and Kiser, Dr. Cochran appears to have treated Chavez and

relied only on his examinations and her oral medical history. (Docket Entry No. 65-1). “A number

of courts agree that a treating physician may testify as a non-retained expert witness—and therefore

need not provide an expert report—if the testimony is confined to “facts disclosed during care and

treatment of the patient.” Kim v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex. 2008) (citing

Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir.2007) (“[A] report is not required when

a treating physician testifies within a permissive core on issues pertaining to treatment, based on

what he or she learned through actual treatment and from the plaintiff's records up to and including

that treatment.”); see Sullivan v. Glock, Inc., 175 F.R.D. 497, 500-502 (D.Md.1997) (“To the extent

that the source of the facts which form the basis for a treating physician’s opinions derive from

information learned during the actual treatment of the patient—as opposed to being subsequently

supplied by an attorney involved in litigating a case involving the condition or injury—then no

Rule 26(a)(2)(B) statement should be required.”)).

Additionally, a “treating physician may opine as to the causation of a plaintiff's injuries

and a plaintiff's prognosis as long as the doctor formed those opinions based on the care-provider’s

personal knowledge and observations obtained during the course of care and treatment.” Kim, 267

F.R.D. at 502 (collecting cases). Home Depot has not pointed to or submitted information showing

that Dr. Cochran’s opinions had a basis other than personal knowledge and observations obtained

in treating Chavez. The court finds that Dr. Cochran is a non-retained expert.

Home Depot also argues that Dr. Cochran’s opinions are unreliable and highly prejudicial

because Dr. Cochran did not consider any alternative causes of Plaintiff’s injury. (Docket Entry

No. 65 at 10). It is well established in this circuit that treating physicians may not rely only on a

plaintiff’s statements about the cause of an injury without considering other potential causes. See

Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987) (“Dr. Johnson’s opinion rests on

Viterbo’s statements that he experienced certain symptoms and that Tordon 10K was the only

possible cause. This opinion simply lacks the foundation and reliability necessary to support expert

testimony. . . . Dr. Johnson’s testimony is no more than Viterbo’s testimony dressed up and

sanctified as the opinion of an expert.”); McNabney v. Lab’y Corp. of Am., 153 F. App’x 293, 295–

96 (5th Cir. 2005) (“Dr. Gazda was unaware of McNabney’s history of arm trauma when she

concluded that the venipuncture caused McNabney’s RSD . . . her opinion, lacking an awareness

of McNabney’s medical history, fails to consider and exclude other possible causes of her RSD.”).

Although it is true, as Chavez argues, that “a plaintiff’s oral history provides a reliable basis for a

treating physician to form opinions regarding causation,” (Docket Entry No. 71 at 5), Chavez also

acknowledges that “medical causation experts must have considered and excluded other possible

causes of injury.” (Id. at 6).

Dr. Cochran’s report does not consider and exclude other possible causes of Chavez’s

injuries. (Docket Entry No. 65-1). Dr. Cochran acknowledges that Chavez had a pre-existing

condition that was symptomatic, and that she had had surgery after her fall at Home Depot and

before Dr. Cochran began treating her. (Id.). But Dr. Cochran does not evaluate the role of either

in causing the condition for which Chavez seeks recovery from Home Depot. And he could not

properly do so without relying on information that might make him a retained rather than a non-

retained expert. Because of this, Dr. Cochran’s testimony regarding causation is excluded.

Finally, Home Depot argues that Dr. Cochran’s treatment of Chavez was “unrelated” to the

case, and therefore should be excluded. (Docket Entry No. 65 at 10). Dr. Cochran did not begin

treating Chavez until several months after she fell. This is not dispositive as to whether his

treatment was related to the fall, but instead “affect[s] the weight to be assigned that opinion rather

than its admissibility and should be left for the jury’s consideration.” United States v. 14.38 Acres

of Land, More or Less Sit. In Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting

Viterbo, 826 F.2d at 422). Dr. Cochran may testify as to his diagnosis and treatment of Chavez,

but he may not exceed the scope allowable for a non-retained expert, and he may not rely on

external information provided by Chavez’s counsel.

B. Plaintiff’s Non-Retained Experts’ Testimony

Chavez designated 18 nonretained medical experts, all treating physicians or healthcare

providers, to testify about her diagnosis, treatment, and the reasonableness of her medical

expenses. (Docket Entry No. 12). Chavez submitted these designations before the court’s deadline

for expert-witness designations. (Docket Entry Nos. 10, 12).

Each of Chavez’s treating-physician and healthcare-provider experts was initially

designated with a short blanket explanation:

The following are non-retained experts, treating physicians, hospitals and/or

doctors who have provided care to Plaintiff as a result of the incident made the basis

of this lawsuit. Due to their training, knowledge, and experience, they may provide

expert testimony pertaining to the treatment, testing, and examinations of Plaintiff

and the medical charges relating to same; and to render opinions as to the diagnosis

and prognosis of Plaintiff’s injuries and damages, and the reasonableness and

necessity of the medical charges incurred[.]

(Docket Entry No. 12 at 1). Chavez also provided expert reports of two doctors, Dr. Boutros and

Dr. Lin, designated as testifying about past, ongoing, and future medical treatment and costs.

(Docket Entry Nos. 12, 16, 17). Chavez produced records related to each healthcare provider.

After discovery closed, Hope Depot moved to strike Chavez’s expert designations for

failure to comply with Rule 26(a)(2)(C). (Docket Entry No. 66). Home Depot argues that Chavez

failed to “disclose a summary of facts and opinions in the disclosure of non-retained experts.”

(Docket Entry No. 66 at 3). Rule 26(a)(2)(C) requires the “summary of the facts” to contain “a

brief account of facts—only those on which the expert actually relied in forming his or her

opinions—that states the main points derived from a larger body of information.” Tolan, 2015

WL 5332171, at *6. A mere “reference [to] large bodies of material sources of fact” does not

qualify as a summary of facts. Id.

Several cases are instructive. In Moore, 2019 WL 8886239, at *4, the court held that the

plaintiff’s designations listing “medical records, discovery documents, and the pleadings” as the

factual basis for the expert’s opinion failed “to provide a brief statement of facts.” Similarly, in

Williams v. Louisiana, the court “rejected the notion that a disclosure solely of medical records is

sufficient as a summary of the facts and opinions to which the witness is expected to testify.” No.

14-CV-00154, 2015 WL 5438596, at *3 (M.D. La. Sept. 14, 2015) (collecting similar cases); see

also Knighton v. Lawrence, No. 14-CV-718, 2016 WL 4250484, at *2 (W.D. Tex. Aug. 9, 2016).

Chavez does not dispute that she provided no information beyond the paragraph listed

above for most of her designated non-retained experts. (Docket Entry No. 70). These designations

are plainly insufficient. They provide no information about the experts’ examinations, about

specific treatment or diagnoses, or about the medical records that would provide further

information about the basis for each expert’s opinion. Carr v. Montgomery Cty., et al., No. 4:13-

CV-2795, 2015 WL 5838862, at *3 (S.D. Tex. Oct. 7, 2015).

When a party fails to comply timely with Rule 26(a), “the party is not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Courts look to four factors:

“(1) the importance of the evidence; (2) the prejudice to the opposing party of including the

evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the

explanation for the party’s failure to disclose.” Bitterroot Holdings, LLC v. MTGLQ Inv’rs, LP,

648 F. App’x 414, 419 (5th Cir. 2016) (quoting Tex. A&M Research Found. v. Magna Transp.,

Inc., 338 F.3d 394, 402 (5th Cir. 2003)).

The first factor weighs in favor of allowing Chavez’s experts to testify. See Bitterroot

Holdings, 648 F. App’x at 419 (the district court did not abuse its discretion in permitting evidence

not timely disclosed under Rule 26 because the evidence was so important to the case). Testimony

from Chavez’s treating physicians is crucial to this case.

The second and third factors are neutral. In determining if a party will be prejudiced by

allowing an improperly designated expert to testify, courts examine the ability to prepare a defense

and the time needed to prepare the case adequately. Cont’l Cas. Co. v. F-Star Prop. Mgmt., Inc.,

No. 10-CV-102, 2011 WL 2887457, at *7 (W.D. Tex. July 15, 2011) (analyzing the effect a delay

will have on the “schedule” set by the court and “the opponent’s preparation”). A party cannot

claim prejudice due to its own “inaction.” Atlas Imports, Inc. v. Atain Specialty Ins. Co., No. 18-

CV-1115, 2020 WL 4574521, at *6 (S.D. Tex. June 10, 2020). In the context of treating physician

designations, courts generally find “little, if any, prejudice” when a party clearly identifies the

designated treating physician it plans to use as an expert and does so long before trial. Smith v.

Tangipahoa Par. Sch. Bd., No. 18-CV-6635, 2019 WL 3081954, at *2 (E.D. La. July 15, 2019);

see also Moore, 2019 WL 8886239, at *4 (“[Defendant] has known for at least ten months that the

[n]on-retained Experts could be called to testify about their treatment of [plaintiff’s] injuries.”).

The final factor favors Home Depot. Chavez appears to continue to argue that her

designations are sufficient. (Docket Entry No. 70 at 5–6). The rule is clear that a summary of the

factual basis for each expert’s opinion is required in a Rule 26(a)(2)(C) designation, and even after

being notified of potential deficiencies, Chavez has not supplemented her expert designations.

Home Depot has asked that if Chavez’s non-retained experts are allowed to testify, their

testimony should be “strictly limited to the verbatim entries contained in each provider’s records

that have been produced by Plaintiff.” (Docket Entry No. 66 at 6). Given Chavez’s failure to

submit disclosures in accordance with Rule 26(a)(2)(C), the non-retained treating physicians’

testimony will be “limited to personal observations, diagnoses and treatment contained in [that

provider’s] medical records[.]” Moore v. DeJoy, No. 18-CV-12270, 2022 WL 19263947, at *6

(E.D. La. Feb. 23, 2022). This limitation will not apply to Dr. Boutros and Dr. Lin, whose expert

reports were timely and sufficiently disclosed.

C. Wolfson Life Care Plan

Finally, Home Depot has objected to the Wolfson Life Care Plan report on Chavez’s

anticipated future medical expenses. (Docket Entry No. 66 at 6–7). Home Depot argues that the

Plan does not meet the “reasonable probability rule” for future damages.

“Under Texas’s reasonable probability rule, to sustain an award of future medical

expenses, the plaintiff must present evidence to establish that in all reasonable probability (1)

medical expenses will be incurred in the future, and (2) what the reasonable cost of that care will

be.” Rodriguez v. Larson, 250 F. App’x 607, 609 (5th Cir. 2007) (internal quotations omitted).

However, this is a standard that is applied by the jury in determining whether a plaintiff has

sufficiently established an entitlement to future medical expenses. Id. Home Depot argues that

some courts have excluded reports that make conclusions about future medical expenses that are

not based on a greater than 50% probability. (Docket Entry No. 72 at 6–7); see Koenig v.

Beekmans, No. 5:15-CV-0822, 2017 WL 7732809, at *3 (W.D. Tex. Mar. 23, 2017).

The Plan Chavez submitted states that it considers only “recommendations that are deemed

a medical necessity with greater than 50% chance of being required.” (Docket Entry No. 13 at 6).

“Texas courts have consistently held that the award of future medical expenses rests within the

sound discretion of the jury.” Rosenboom Mach. & Tool, Inc. v. Machala, 995 $.W.2d 817, 828

(Tex. App.—Houston [1st Dist.] 1999, pet. denied). The Plan does not contain particularized

analyses of why each treatment is more likely than not to be necessary in the future, but this does

not require exclusion. Counsel for Home Depot can expose what it believes to be the weaknesses

of the Plan in cross examination, and the jury will decide what weight, if any, the Plan deserves.

IV. Conclusion

The court grants in part Home Depot’s motion to exclude the testimony of Dr. Cochran,

and limits Dr. Cochran’s testimony to that appropriate for a non-retained expert. (Docket Entry

No. 65).

The court grants in part and denies in part Home Depot’s motion to exclude Chavez’s non-

retained experts’ testimony and Wolfson Life Care Plan, as described in detail above. (Docket

Entry No. 66). The Wolfson Life Care Plan is admissible, and the non-retained experts’ testimony

will be limited to information in the disclosed records.

SIGNED on September 18, 2023, at Houston, Texas.

EW, Caner

Tee HH. Rosenthal

United States District Judge

1]